holding that willfulness as it pertains to the Maryland Wiretapping Law does not “require knowledge on the part of the defendant that his or her action is unlawful — that is prohibited by the statute”
How later courts described this case
- holding that willfulness as it pertains to the Maryland Wiretapping Law does not “require knowledge on the part of the defendant that his or her action is unlawful — that is prohibited by the statute”
- noting that, when a man “placed [a] recording device, with an audio attachment, into . . . [a] bathroom deliberately and intentionally,” the pertinent question was “whether . . . he intended to intercept an oral communication,” i.e., a private conversation
- holding that “an interception that is not otherwise specifically authorized is done willfully if it is done intentionally — purposely”
- concluding that a device that recorded both video and audio intercepted an oral communication, in violation of the Wiretap Act
Written by the judges who cited it.
The opinion
HARRELL, Judge,
dissenting.
I dissent. The Majority’s conclusion as to the interpretation to be given the willfulness/wilfulness element of the wiretap law, Maryland Code, Courts & Judicial Proceedings Art., § 10-402(a)(1), (Maj. Op. at 198-200) is wrong. 1 continue to “adhere like a barnacle to the clear definition of wilfulness provided in Benford [v. [American Broadcasting Co., Inc.] ABC, 649 F.Supp. 9, 10 (D.Md.1986)] and Earley [v. Smoot, 846 F.Supp. 451, 453 (D.Md.1994)].” Fearnow v. C & P Telephone Co. of MD, 104 Md.App. 1, 23-24, n. 20 , 655 A.2d 1, 17-18, n. 20 (1995), rev’d on other grounds, 342 Md. 363 , 676 A.2d 65 (1996); see also Hawes v. Carberry, 103 Md.App. 214, 220-222 , 653 A.2d 479, 482-83 (1995). The Majority opinion fails to persuade my small mind (I authored the Fearnow opinion while serving on the Court of Special Appeals) that maintaining consistency in this regard is foolish. 5 Thus, although Deibler’s conduct was morally reprehensible, the record of his trial fails to provide evidence of the degree of wilfulness required under Maryland’s wiretap statute and, thus, his conviction thereunder should be reversed.
I also disagree with the Majority’s reasoning and resolution of Deibler’s telephone abuse conviction. Maj. Op. at 201-203. *204 Despite the Majority’s inability to find a “case quite like the one before us in which a conviction has been sustained” (Maj. Op. at 202), the present case is not so rare that we should overlook fundamental principles such as: (1) we review the record below by considering “whether, after viewing all of the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (Jackson v. Virginia, 448 U.S. 307 , 319, 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979)); and, (2) it is the responsibility of the trier of fact, not us, to draw reasonable inferences from basic facts to ultimate facts, to evaluate the credibility of witnesses, and to resolve conflicts in the evidence (e.g., State v. Albrecht, 336 Md. 475, 478 , 649 A.2d 336 (1994)).
The trial co.urt listened to the tapes of the three conversations and to Deibler’s explanation that his intent was only to protest what he regarded as Cordle’s lack of professionalism in his handling of the investigation. The court expressly disbelieved that explanation and found a lack of credibility in Deibler’s testimony. The first message, with the cocking of the gun, the court found to be clearly threatening and with the intent to annoy or harass. With respect to the other two messages, the court found Deibler’s tone to be angry and sarcastic, that he “unleashed a stream of profanity to express his discontent” but did little to articulate any specific complaint. In one, he threatened to “go after” Cordle, which the court found, in conjunction with the cocking of a gun in the first message, to constitute more than simply a complaint or a threat merely to take legal action against Cordle. For those reasons, the court found, beyond a reasonable doubt, that Deibler “did make repeated calls, with the specific intent to annoy, abuse, torment, harass and embarrass Mr. Cordle, in a deliberate attempt to persuade him to terminate his investigation.”
We do not view each call an isolation, to see if it, alone, can be regarded as made with one of the requisite intents. When there are repeated calls, we must look at them together, to see if, from the aggregate, there is such an intent. The evidence *205 here supports the court’s finding that Deibler made the calls with the intent to annoy or harass Cordle, in an effort to cause him to curtail his investigation. The anger and the threat to “go after” Cordle exhibited in the second call can take on a special meaning when coupled with the more blatant threat implicit in the first call. The innocent explanation offered by Deibler simply was not believed. The evidence sufficed to support the conviction. Therefore, I would affirm Deibler’s conviction of the telephone abuse law.
Chief Judge Bell authorizes me to state that he joins only that part of this dissent regarding the wiretap conviction. He agrees with the majority regarding the telephone abuse conviction.
Judge BATTAGLIA authorizes me to state that she joins only that part of the dissent regarding the telephone abuse conviction. She agrees with the majority regarding the wiretap conviction.
. “A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.” Ralph Waldo Emerson, Essays. First Series. Self-Reliance (1841).